Chesen on Sept. 10 suspended Fesenmaier and Spellman, as well as council members Arleen Krohn and Penny Roehrer, accusing them of misconduct and violating the Wisconsin Open Meetings Law. He has accused Roehrer and Spellman also of neglecting their duties.
Chesen on Sept. 21 rescinded the suspensions of Krohn and Roehrer to restore quorum, and the council on Sept. 23 narrowly voted to appoint Larry Magee and Sturges Taggart as replacements for Fesenmaier and Spellman, respectively.
A hearing in front of the city council for the four charged council members has been postponed until a special prosecutor is appointed.
Roehrer and Krohn on Monday night sought to have the council dismiss the charges against all four council members. They requested the item be placed on the meeting agenda. But the item was tabled as recommended by the independent attorney advising the city on the matter.
Attorney David Rasmussen said Tuesday he plans this week to file papers in Walworth County Court asking for dismissal of the charges against Fesenmaier and Spellman and asking for their reinstatement.
In papers he plans to file, he argues Chesen misinterpreted and misused state statutes to charge and suspend the council members.
-- Rasmussen argues a charge of "inefficiency" cannot be made against a city council member because such a charge does not exist.
Wisconsin statutes provide for removal from office for cause but no longer contain a subsection defining "cause" as "inefficiency, neglect of duty, official misconduct or malfeasance in office."
Rasmussen argues that without that definition, there is no support in state statutes for charging a city council member with inefficiency.
-- Rasmussen argues a charge of "neglect of duty" cannot be made against city council members because council members have powers, not duties. Chesen brought the charge based on unexcused absences from committee and council meetings.
Wisconsin Statutes say the city council "may" compel attendance, not "shall" compel attendance.
Rasmussen argues Chesen "usurped an exclusive power of the council." He writes that the mayor is seeking to enact an attendance requirement when state statutes grant the council authority to enact such a requirement.
-- Rasmussen argues that Chesen's charge that the council member violated the Wisconsin Open Meetings Law relies on an "aggressive interpretation" of the law by a mayor who is not empowered to enforce it.
Wisconsin statutes require public notice of every meeting of a governmental body. Statutes say a city council member who attends a meeting in violation of the law can be fined $25 to $300 if convicted.
Rasmussen argues conviction of an open meetings violation is not cause for removal from office.
Wisconsin statutes say that a city council member can be removed from office if convicted and sentenced by a state or federal court for "treason, felony or other crime … punishable by imprisonment … for one year or more …"
Rasmussen argues that in seeking removal of council members for violating the open meetings law the mayor would impose a higher penalty than what is provided by the law.